Holmes v. Officer Stovall
Filing
29
OPINION AND ORDER that the 25 Report and Recommendation is ADOPTED. The Plaintiff's 18 and 20 Motions for Summary Judgment are DENIED. Signed by Judge William S. Duffey, Jr on 8/8/2011. (ank) Modified on 8/8/2011 in order to update docket text (ank).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RECARDO HOLMES,
GDC ID # 182963,
Plaintiff,
v.
1:09-cv-3267-WSD-AJB
OFFICER STOVALL,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Non-Final Report and Recommendation (“R&R”) [25] regarding Plaintiff’s two
Motions for Summary Judgment [18, 20].
I.
BACKGROUND
On November 19, 2009, Recardo Holmes (“Plaintiff”) filed a Civil Rights
Complaint pursuant to 42 U.S.C. § 1983. On November 15, 2010, Plaintiff filed a
Motion for Summary Judgment [18]. On January 6, 2011, Plaintiff filed a second
Motion for Summary Judgment [20].
On May 16, 2011, the Court ordered Plaintiff to show cause why the actions
should not be dismissed due to failure to timely serve the Complaint upon
Defendant [21]. On May 27, 2011, Plaintiff provided information regarding
Defendant and why service had not been made [22]. On June 14, 2011, the Court
issued a Non-Final R&R on the Plaintiff’s motions and ordered the Clerk to
prepare and mail Defendant a service package and Waiver of Service [24, 25].
As noted in the R&R [25], Plaintiff’s motions for summary judgment are
based on Defendant’s failure to be served with and respond to the Complaint in
this matter. Since the filing of the Plaintiff’s motions for summary judgment [18,
20] and issuance of the R&R [25], Defendant has accepted service, through his
attorney, and an appearance in the case has been made by counsel [27, 28]. An
answer to the Complaint is due from Defendant by August 26, 2011.
II.
DISCUSSION
A.
Standard of Review on the Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112
(1983). Because no objections to the R&R have been filed, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
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The Court finds that it cannot grant summary judgment based on a claim of
lack of service upon a defendant.1 There being no objection to the findings or
recommendations in the R&R [25], and having reviewed them and finding no plain
error, the Court adopts them.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate
Judge’s Non-Final R&R [25].
IT IS HEREBY FURTHER ORDERED that the Plaintiff’s Motions for
Summary Judgment [18, 20] are DENIED.
SO ORDERED this 8th day of August, 2011.
_________________________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
“Generally, where service of process is insufficient, the court has no power to
render judgment and the judgment is void.” In re Worldwide Web Sys., 328 F.3d
1291, 1299 (11th Cir. 2003).
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